Opinion
Supreme Court No. S-12248.
December 12, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-00-03661 CI.
Johnnie Bustamante, pro se, Anchorage. Allan E. Tesche, Russell, Tesche, Wagg, Cooper Gabbert, Anchorage, for Appellees Space Mark, Inc. and American Home Assurance.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Bryner, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Johnnie Bustamante appeals the decision of the superior court, which affirmed the Alaska Workers' Compensation Board decision denying his application for benefits. The Board decided that Bustamante had not proven by a preponderance of the evidence that he suffered a compensable injury in his work for either Space Mark, Inc. or Ounalashka Corporation. It also found in the alternative that Bustamante should be barred from receiving benefits because he had not disclosed a prior psychiatric condition during a preemployment physical for his job with Space Mark. We affirm the Board's decision to deny benefits to Bustamante because substantial evidence in the record supports the Board's finding that Bustamante did not prove his claim by a preponderance of the evidence.
II. FACTS AND PROCEEDINGS
Johnnie Bustamante began working as a project engineer for Space Mark, Inc., at Adak on February 26, 1997. Before he began work Space Mark required a preemployment physical examination to ensure that he met the medical, dental, and drug screening requirements of the United States Navy. The Navy's medical restrictions for Space Mark employees included the following proviso: "In virtually all instances, individuals with the following medical problems are not suitable for assignment to Adak: . . . Any history of psychosis, thought or mood disorder, including schizophrenia, schizoaffective disorder, multiple personality, bi-polar disorder, or any other illness requiring psychotropic medications." Bustamante obtained a preemployment physical from his physician in Colorado Springs. The chart notes from this visit stated, "Denies nervous disorders, blood diseases, or mental hospital admissions."
About six weeks after he arrived on Adak, Bustamante began to experience swelling and pain in his hands. He linked his hand pain to his typing duties. After an evaluation by the nurses on site at Adak, Bustamante saw a physician in Anchorage; both the doctor and the nurses prescribed ibuprofen but did not suggest work restrictions. In September 1997 Bustamante's treating physician referred him to two specialists for assessment of his continuing pain. One doctor conducted testing and ruled out carpal tunnel syndrome; both specialists diagnosed tendinitis. Dr. Lipke, an orthopedic surgeon, placed Bustamante on lighter duty work. Shortly afterwards, Bustamante filed a report of injury with Space Mark. In response Space Mark wrote that it doubted the validity of Bustamante's injury because his off-duty activities were more strenuous than his work duties. Space Mark did not file the report of injury with the Alaska Workers' Compensation Board until January 16, 1998, even though its operations manager signed it on September 25, 1997. Bustamante quit working for Space Mark in October 1997 because he was offered a higher-paying job in Dutch Harbor with Ounalashka Corporation. His job duties there were similar to his duties on Adak, but a bit lighter duty.
Bustamante fished with both a rod and reel and a gill net while he was on Adak; he tried to fish an hour or so every day.
Space Mark controverted benefits on January 18, 1998, denying that Bustamante's injury was work related. In the course of Space Mark's investigation of Bustamante's injury, it asked Dr. Lipke if the injury was work related; he replied, "The patient thinks that it is I have no reason to disagree with him." A few months later, Dr. Lipke stated that although Bustamante had had evidence of clinical tendinitis, his pain complaints exceeded the physical findings in his case and, as a result, Dr. Lipke was not able to determine the actual cause of the hand complaints. In mid-May 1998 Dr. Lipke ended his treatment of Bustamante. Bustamante then saw a number of health care providers for his hand pain; none of them was able to identify with any certainty the cause of the pain.
Space Mark arranged for Dr. John Ringman, a neurologist, to conduct an independent medical examination (IME) of Bustamante on March 16, 1998. Dr. Ringman found no evidence of carpal tunnel syndrome and diagnosed "bilateral palmar arthralgia, possibly secondary to tendinitis or arthritis." He expressed the opinion that Bustamante's employment at Space Mark might have contributed to the possible tendinitis "in a small way," but that it was more likely that off-work activities, such as fishing and repeated lighting of cigarettes, contributed to an equal if not greater degree. Dr. Ringman later clarified his opinion by stating that Bustamante's work with Space Mark and Ounalashka was not a substantial factor in causing any tendinitis Bustamante may have had.
"Arthralgia" is joint pain. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 140 (28th ed. 1994).
Bustamante smoked one to one-and-a-half packs of cigarettes a day.
Space Mark obtained another IME, this time with Dr. Peter Nathan, an orthopedic surgeon. Dr. Nathan's office conducted extensive testing and, based on the physical examination, test results, and Bustamante's history, Dr. Nathan diagnosed Bustamante with a lesion of the ulnar nerve, early probable carpal tunnel syndrome, trigger digits, and tendinitis that had resolved. Dr. Nathan did not believe that Bustamante's employment at Space Mark or Ounalashka was a substantial factor in bringing about or significantly worsening any of the conditions he identified; instead, he indicated that intrinsic factors were the cause. He stated that Bustamante was medically stable, able to continue his work as an engineer, and in need of no further evaluation with regard to his hand problems.
Bustamante filed a workers' compensation claim against Space Mark on May 24, 1998. He listed his injury as tendinitis in his hands and wrists. Space Mark's answer denied liability for any benefits. Bustamante filed a report of injury with Ounalashka on August 19, 1998, stating that he had been injured at his job with Space Mark; he later filed a workers' compensation claim against Ounalashka on December 1, 1998, making the same claims as he did against Space Mark. Ounalashka answered the claim by denying liability for benefits. Space Mark filed an amended answer, raising as a defense the last injurious exposure rule.
Bustamante's job with Ounalashka ended on September 4, 1998.
Bustamante's claims against the two employers were consolidated on January 8, 1999. On March 19, 1999, the Board ordered, at Bustamante's request, a second independent medical evaluation (SIME) on the issues of causation, compensability, and recommended treatment. Dr. Lawrence Zivin, a neurologist, examined Bustamante on June 23, 1999, for the SIME and conducted an extensive record review. Dr. Zivin found no neurological disorder to explain Bustamante's hand symptoms. He indicated that the symptoms were "strikingly free of objective findings on examination" and that Bustamante's complaints were inconsistent and not helped by conservative measures. He concluded that repetitive keyboard motion was not a factor in Bustamante's hand problems. He noted that there was no evidence of any specific injury as a substantial factor in aggravating any preexisting condition. Dr. Zivin observed that an illness like the one Bustamante described could have a psychological basis.
Space Mark hired Dr. Ronald Turco to conduct a psychiatric examination of Bustamante. Based on his examination and testing, Dr. Turco concluded that Bustamante suffered from a conversion disorder which was not attributable to his employment at Space Mark or Ounalashka. He recommended no psychiatric treatment and no work restrictions related to the psychiatric disorder.
Dr. Nathan reevaluated Bustamante at Space Mark's request. Dr. Nathan again diagnosed ulnar neuropathy and once more stated that Bustamante's work was not a substantial factor in causing, aggravating, or accelerating the conditions he diagnosed. He also noted a "significant psychiatric component" to Bustamante's complaints. Dr. Nathan recommended no further diagnostic studies and felt that although surgery might benefit Bustamante, it was not warranted until Bustamante's psychological issues were addressed.
The Board held a hearing on the workers' compensation claims against Space Mark and Ounalashka on October 19 and 22, 1999. Shortly before the hearing Bustamante and Ounalashka entered into a settlement in an attempt to dismiss the claim against Ounalashka. Space Mark refused to agree to the dismissal of Ounalashka, as Space Mark had raised last injurious exposure as a defense, and the Board refused to approve the settlement.
At the hearing Bustamante testified on his own behalf and called no other witnesses. Dr. Turco testified by telephone for Space Mark, and Drs. Nathan and Ringman testified by deposition. Bustamante's arguments at the hearing were that the presumption of compensability attached, that there was insufficient evidence to rebut the presumption, and that, even if Bustamante had a preexisting psychological problem, his work at Space Mark aggravated it.
Not long after the hearing Space Mark obtained Bustamante's Veteran's Administration (VA) medical records from the 1970's. The records contained information about a suicide attempt and two psychiatric hospitalizations from 1974. One medical record showed a diagnosis of pseudoneurotic schizophrenia and treatment with Trilafon, an anti-psychotic medication, by Dr. Marshall Stiles. Space Mark asked the Board to consider this new evidence; the Board reopened the record so that it could do so. Drs. Turco and Nathan provided supplemental opinions after review of the VA medical records. Both doctors used the records to bolster their opinions that Bustamante's medical conditions preexisted his employment with Space Mark.
According to Dorland's Medical Dictionary, pseudoneurotic schizophrenia is the same as schizotypal personality disorder. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1492 (28th ed. 1994). The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) does not appear to contain diagnostic criteria for pseudoneurotic schizophrenia.
On March 28, 2000, the Board issued its final decision in Bustamante's case. It determined that Dr. Lipke's report and Bustamante's testimony were sufficient to attach the presumption of compensability, although the attachment was "tenuous." It then decided that Space Mark and Ounalashka had rebutted the presumption that Bustamante's hand pain and conversion disorder were work related through the testimony of Drs. Nathan, Ringman, Lipke, Turco, and Zivin. It found that Bustamante had not proven the elements of his claim by a preponderance of the evidence. It specifically found that Bustamante's conversion disorder was "in no way" related to his work at Space Mark or Ounalashka. It found, in the alternative, that Bustamante should be barred from receiving benefits because he had "apparently" not disclosed his psychiatric hospitalization from 1974 during his preemployment physical. It therefore denied his claims against both Space Mark and Ounalashka.
Bustamante filed a timely appeal in the superior court. The case was initially assigned to a judge in Kodiak for decision, but the case had an Anchorage case number. The superior court dismissed the appeal on November 20, 2000, because Bustamante had not paid for preparation of the transcript of the Board hearing. Bustamante appealed the dismissal to this court. We affirmed the superior court's refusal to appoint an attorney for Bustamante but reversed the order of dismissal and remanded the case to the superior court to exercise its discretion related to the cost of transcripts.
Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270 (Alaska 2002).
After remand Bustamante asked the superior court to change venue because of the inconvenience to witnesses in having proceedings in Kodiak. The superior court denied the motion for change of venue because de novo review had not been requested, so the location of witnesses was not material to venue.
On August 14, 2003, the case was reassigned to an Anchorage judge. The superior court excused Bustamante from prepayment of the cost of transcription on October 14, 2003, but did not send a notice for preparation of the record to the Board until March 5, 2004. The court gave the Board until July 16, 2004, to prepare the record after the Board requested more time. In its February 21, 2006 order, the superior court upheld the Board's decision in all respects and determined that Bustamante's claim of error about assigning the case to an out-of-town judge was better heard upon appeal. Bustamante appeals.
III. DISCUSSION
A. Standard of Review
This court gives no deference to the decision of a superior court acting as an intermediate court of appeal; rather, it directly reviews the Board's ruling. The Board's factual findings are reviewed to determine whether they are supported by substantial evidence. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In determining whether substantial evidence supports the conclusion, it is not the function of the appellate court to reweigh the evidence but only to determine whether such evidence exists. B. Substantial Evidence Supports the Board's Findings.
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004).
Id. (citations omitted) (internal quotation marks omitted).
Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska 1996).
The Alaska Workers' Compensation Act creates a presumption that an employee's claims are compensable. Applying this presumption involves a three-step analysis. First, the employee must establish a link between his injury and his employment. To attach the presumption of compensability, an employee must demonstrate "some evidence" that the employment contributed to the disability. Here, the Board found that Bustamante had produced sufficient evidence to establish a link between his employment and his disability through his testimony and Dr. Lipke's statement.
Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003).
Id. (quoting Temple v. Denali Princess Lodge, 21 P.3d 813, 816 (Alaska 2001)).
Id.
Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224, 227 (Alaska 2000).
Space Mark argues that the Board erred in attaching the presumption "based solely on Dr. Lipke's January 21, 1998 comment," implying that there was too little evidence to attach the presumption. The Board based its finding that the presumption attached not only on Dr. Lipke's statement, but on Bustamante's testimony as well. Medical evidence is not always necessary to establish a link between the condition and work; in addition, the Board can combine lay and medical testimony to reach a conclusion. Even though Dr. Lipke's statement is not very strong, in combination with Bustamante's testimony about his injury, it was sufficient to attach the presumption. The Board's determination that Bustamante's evidence was sufficient to attach the presumption is therefore not error.
Id. at 227-28.
Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 996 (Alaska 1970).
Once the presumption of compensability attaches, the employer may rebut it with substantial evidence. For an employer to rebut the presumption, she must present substantial evidence that: (1) provides an alternative explanation which, if accepted, would exclude work-related factors as a substantial cause of the disability, or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability. An employer may rebut the presumption of compensability with an expert opinion that the claimant's work was probably not a substantial cause of the disability. At this stage the evidence is viewed in isolation and is not weighed against other potentially conflicting evidence.
Bradbury, 71 P.3d at 906.
DeYonge v. NANA/Marriott, 1 P.3d 90, 95-96 (Alaska 2000) (quoting Gillispie v. B B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)).
Gillispie, 881 P.2d at 1110 (citations omitted).
VECO, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska 1985).
Bustamante challenges the Board's finding that Space Mark rebutted the presumption of compensability through the testimony of Drs. Nathan, Ringman, Lipke, Turco, and Zivin.
Bustamante also asserts that Drs. Klimow, Lipke, and Nathan, as well as the Space Mark nurses, never recanted their diagnoses. For purposes of this appeal, it is irrelevant whether Drs. Klimow and Nathan, and the nurses whom Bustamante saw on Adak, recanted their diagnoses; none of the providers linked the conditions they diagnosed to Bustamante's work. Workers' compensation only covers injuries that arise in the course and scope of employment. AS 23.30.010(a).
The Board's finding that Space Mark rebutted the presumption of compensability is supported by substantial evidence. Dr. Zivin's SIME report alone is adequate to rebut the presumption. Dr. Zivin's report found no relationship at all between any of Bustamante's hand complaints and his work. This expert report establishes that Bustamante's work was probably not a substantial cause of his disability. Besides Dr. Zivin's report, Dr. Turco stated that Bustamante's conversion disorder was not the result of his work with Space Mark or Ounalashka but a consequence of a "significant pre-existing psychiatric disturbance."
If Bustamante is arguing that the conversion disorder was the result of extraordinary stress caused by the deaths of two people on Adak while he was there, he waived this argument by not making it before the Board. We will not consider an issue raised for the first time on appeal unless the issue is: (1) not dependent on any new or controverted facts; (2) closely related to the appellant's trial court arguments; and (3) could have been gleaned from the pleadings. McMullen v. Bell, 128 P.3d 186, 190 (Alaska 2006). The of issue whether the conversion disorder was the result of extraordinary stress involves new facts that the Board did not consider or decide.
After an employer rebuts the presumption of compensability, the burden shifts to the employee to prove his claim by the preponderance of the evidence. The employee must induce a belief in the trier of facts that the asserted facts are probably true. Here, the Board found that Bustamante had not proven his claim by a preponderance of the evidence. The Board's decision was based on the following factual findings: (1) Bustamante had a history of complaints related to his hands that predated his employment with Space Mark; (2) Bustamante only worked a short time before his pain complaints began; and (3) there was no medical evidence to support a finding that his condition was related to his work with either employer. Bustamante attacks the Board's conclusion that he did not prove his claim by trying to undermine the first and third findings.
Bradbury, 71 P.3d at 906.
Id.
Bustamante argues that his prior hand complaints were all related to side effects from his high blood pressure medication and that the Board erred in rejecting evidence that he presented about his prescriptions.
Bustamante presented evidence to the Board that he was taking blood pressure medication, but no medical testimony directly linked the medication to any of his hand complaints. One drug that Bustamante took, Hytrin, can cause peripheral edema as a side effect. Bustamante testified that he saw a physician's assistant in Colorado in 1997 and that he left the consultation with the understanding that he had a reaction to Hytrin. However, Bustamante's medical providers did not record that he was suffering from a side effect of Hytrin in his medical records, and they continued to prescribe it for him. In fact, Bustamante was still taking Hytrin after the medical records indicate that the swelling in his hands had subsided. Also, the evidence Bustamante presented was not the only evidence before the Board about the effects of blood pressure medication. Dr. Nathan testified that it was unlikely that Lasix or Hytrin caused Bustamante's hand complaints. The Board was free to credit Dr. Nathan's testimony and reject Bustamante's theory. The Board's determination of the weight to be accorded medical testimony and reports is conclusive, even when the evidence is conflicting.
Bustamante presented evidence about the side effects of some medication in general, but presented no evidence linking the use of the medication to his complaints.
Bustamante appears to misunderstand the meaning of some of the medical terms he uses in that he equates "paresthesia" and "swelling." "Paresthesia" is "an abnormal touch sensation, such as burning, prickling, or formication, often in the absence of an external stimulus." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1234 (28th ed. 1994). Swelling is edema. Id. at 528-29.
Cowen, 93 P.3d at 426.
AS 23.30.122.
There are also several medical records showing a prior history of hand complaints. One is a report from 1975, showing numbness in Bustamante's right hand. Another is a record showing a complaint of swelling in his hands shortly before his preemployment physical. Dr. Nathan testified about two other medical records showing prior complaints of paresthesia. The Board's finding that Bustamante's hand complaints predated his employment with Space Mark is therefore supported by substantial evidence.
There is a real absence of medical evidence to support the conclusion that Bustamante's hand complaints were caused by his work at Space Mark or Ounalashka. The only medical evidence linking Bustamante's hand problems to his work was Dr. Lipke's statement in early 1998. The Board could credit the testimony of Space Mark's experts that tendinitis was never a valid diagnosis rather than the opinions of Bustamante's doctors. It could also accept the opinions of those experts that Bustamante's hand pain was not related to his work. In addition to the lack of medical evidence linking Bustamante's hand pain to his work, there are a number of observations in the record, even by Bustamante's treating physicians, noting a discrepancy between Bustamante's subjective complaints and his observed activities when he was not being examined. There is substantial evidence in the record to support the Board's conclusion that Bustamante did not prove his workers' compensation claim by a preponderance of the evidence.
Cowen, 93 P.3d at 426.
Bustamante also asserts that the opinions of several doctors were ambiguous and that any doubt in them must be resolved in his favor. The cases he relies on are limited in application to medical testimony that is internally ambiguous, not the testimony of one expert that conflicts with testimony of another expert. None of the experts the Board relied on gave internally ambiguous opinions. To the extent that Bustamante is arguing that because the many doctors who saw him were not able to agree on a diagnosis, their testimony is contradictory and cannot be used to deny his claim, he is mistaken. We have previously rejected this idea. Thus, even though there are many expert opinions about what caused Bustamante's hand pain, the difference of opinions does not mean that the Board was required to approve Bustamante's claim for compensation.
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1048-49 (Alaska 1978) (setting forth the scope of this doctrine).
Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1275-76 (Alaska 1999) (citing Norcon, Inc. v. Alaska Workers' Comp. Bd., 880 P.2d 1051 (Alaska 1994) (holding that the fact that the cause of an employee's injuries is unknown is not sufficient to label an employer's medical evidence as inconclusive or contested)).
Bustamante raises several other claims of error related to the Board's findings about his prior medical history, none of which has merit. He alleges that he was denied the opportunity to cross-examine Dr. Stiles about the diagnosis of pseudoneurotic schizophrenia. The Board did not rely directly on Dr. Stiles's report in making its findings that Bustamante had not proven his claim. Drs. Turco and Nathan relied on Dr. Stiles's diagnosis in their supplemental reports, but Bustamante did not object to the use of his VA records by Space Mark's experts and waived cross-examination of Drs. Nathan and Turco after they wrote follow-up reports in response to the VA medical records. Because Bustamante did not object to the use of the VA records before the Board, he has waived this issue.
Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996).
Bustamante also attacks Dr. Stiles's expertise, claiming that Dr. Stiles was an "unlicensed psychiatric medical student" at the time of Bustamante's 1974 hospitalization. Bustamante did not raise this issue before the Board or the superior court, so he has waived it.
Id.
Bustamante also argues that his hospitalizations in 1974 do not constitute a "vast psychiatric history." How the Board characterized Bustamante's psychiatric history is irrelevant to its determination that he did not prove his claim. Dr. Turco's supplemental opinion provides substantial evidence on which the Board could reasonably rely to find that Bustamante's prior psychiatric history caused the conversion disorder, and whether this psychiatric history is "vast" does not change the medical opinion.
The Board used an alternative basis to reject Bustamante's claims. It found that even if Bustamante's conversion disorder were triggered by his work at Space Mark, he would be barred from any workers' compensation benefits under AS 23.30.022. T h e Board stated, "The employee apparently did not disclose his previous psychiatric history to the employer in providing his medical history at his pre-employment physical. We find that the employee's failure to disclose this fact is the equivalent of a false representation."
AS 23.30.022 provides:
An employee who knowingly makes a false statement in writing as to the employee's physical condition in response to a medical inquiry, or in a medical examination, after a conditional offer of employment may not receive benefits under this chapter if
(1) the employer relied upon the false representation and this reliance was a substantial factor in the hiring; and
(2) there was a causal connection between the false representation and the injury to the employee.
Because we have determined that the Board's decision denying Bustamante's claim is supported by substantial evidence in the record, we do not decide whether the Board correctly applied AS 23.30.022 to this case. We are nonetheless troubled by the Board's use of the statute here. In order to be barred from receiving workers' compensation benefits, a worker must knowingly make a false statement in writing about an employee's physical condition. Here, the Board found only that Bustamante had apparently failed to disclose his prior psychiatric history during the preemployment physical. There is a significant difference between what the statute requires and what the Board found in Bustamante's case.
C. Other Claims of Error
Bustamante raises a number of other arguments. To the extent they have been properly raised, none of them has merit. The trial court did not err in denying Bustamante's motion to change venue. Venue was never in Kodiak; it was in Anchorage throughout the appeal. Assignment of an out-of-town judge does not change the venue of the case, and Bustamante shows no prejudice resulting from the assignment to a Kodiak judge.
Bustamante also complains that the Board erred in not penalizing Space Mark for filing his report of injury late and for filing a late notice of controversion. Because Bustamante's claim was ultimately denied, no statutory penalty could be imposed against Space Mark. We have previously held that failure to file a notice of controversion within the time period prescribed in the statute can only result in a penalty if the employer is ultimately found liable for the disputed compensation. When an employer files a report of injury late, AS 23.30.070(f) permits the Board to impose a penalty of an additional twenty percent of amounts that were unpaid when due. Because Bustamante was never entitled to benefits, no benefits were unpaid when due, and the Board did not err in failing to penalize Space Mark.
Bauder v. Alaska Airlines, Inc., 52 P.3d 166, 176 (Alaska 2002).
Bustamante alleges that the superior court did not adequately review the Board's findings. The superior court correctly identified its limited role in reviewing the Board's findings and made adequate findings to affirm the Board's decision.
Bustamante contends that the Board erred in failing to forward transcripts of the hearing in a timely manner. He argues that the transcript in his case should have been completed within forty days of the court's order excusing him from prepayment and that the delay in transcription rendered the process fundamentally unjust and oppressive. Any delay in the preparation of the transcript was beyond the Board's control because it did not do the transcription. Furthermore, apart from Bustamante's assertion, nothing in the record demonstrates that the delay resulted in a miscarriage of justice.
Bustamante also argues that Ounalashka should be "released" from the case. There was no error in the Board's refusal to approve the settlement between Ounalashka and Bustamante. All parties needed to agree to the settlement. The Board's denial of Bustamante's claims effectively terminated the litigation against Ounalashka in any event.
8 Alaska Administrative Code (AAC) 45.160(b) (2004).
Ounalashka did not enter an appearance in this court.
Bustamante alleges that the Board erred in ordering multiple SIMEs. This argument is based on a misunderstanding of what an SIME is. The Board only ordered one SIME, with Dr. Zivin. The three other doctors that Bustamante refers to as SIMEs — Drs. Ringman, Nathan, and Turco — are the employers' physicians. Although there are limits on the number of physicians that employers can use, Bustamante never objected to an IME, so he waived any argument that Space Mark may have exceeded its allowance of physicians.
AS 23.30.095(e); 8 AAC 45.082(c)(3) (2004).
Wagner, 926 P.2d at 459.
Bustamante also asserts that even if his tendinitis were caused by fishing, as Dr. Ringman suggested, his injury would be compensable because Adak is a remote site. Bustamante presented no evidence that his fishing was anything but a personal activity that he engaged in on his own. His fishing falls outside the scope of employment, even at a remote site.
AS 23.30.395(2).
Bustamante raises two legal arguments in this court that he did not raise in the superior court or before the Board. He argues that the Alaska Workers' Compensation Act violates the right to a jury trial in the United States Constitution and the Alaska Constitution and that the last injurious exposure rule violates the Americans with Disabilities Act and the Alaska Human Rights Act. While the arguments are purely legal and do not depend on new or controverted facts, they are not closely related to his arguments before the Board or in the superior court. In addition, he has provided minimal briefing on these issues. We decline to address them, although we note that the 7th Amendment right to a jury trial does not apply to state court proceedings.
McMullen, 128 P.3d at 190 (finding waiver).
Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257 (Alaska 2007) (noting that even pro se litigants must provide legal authority for arguments).
Minneapolis St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916); Benson v. City of Nenana, 725 P.2d 490, 491 n. 2 (Alaska 1986) (holding that a worker does not have a constitutional right to a jury trial to determine if he was an employee or an independent contractor at the time his injury occurred).
IV. CONCLUSION
For the reasons stated above, we AFFIRM the Board's decision denying workers' compensation benefits to Bustamante.